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State v Whippy [2004] FJMC 4; Traffic Case No 2156 of 2003 (5 July 2004)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Traffic Case No. 2156 of 2003

STATE

V

MITCHELL WHIPPY

BEFORE AJMAL GULAB KHAN ESQ
RESIDENT MAGISTRATE

5TH JULY 2004:

Prosecution: No appearance
Accused: Present/Archbold

JUDGMENT

The accused in this case chose not to give evidence. The defence counsel has also made a submission of no case after close of the prosecution and the defence case.

However, since it’s written submissions made I do give accused’s submission of no case to answer on consideration. Defence argues "that t he regulations under which accused was charged is ‘ultra vires’ the powers of the minister under Transport Act.

It has been decided before in many cases that S113 of the Act gives powers to the minister of transport to made regulations to prescribe ‘matters necessary to regulate breath test or breath analysis’.

Accordingly the Reg. 2000 was emulgated called Land Transport (Breath tests and Analysis/Regulations 2000. So it was not ultra vires the ministers power.

As for question of blood in the regulations whilst the test conducted is of breath only. The Regulation 2000 (LN 63/00) Reg. 3 LT (B $ T & A) Reg provides for a breath analysis instrument be used.103 (a)3/ says results has to be multiplied by 2.2 (L.N.148/00) in order to argue at the number of milligrams of alcohol in 100 ml. of blood.

The instruments used and results provided are acceptable evidence in court.

High Court case of State –v- Kameli Ratuvou (2002) CA 60/2002.

The defence also submits the charge was improperly drafted and does not inform the accused properly of what he is charged for. Nor is there a ‘Land Transport Authority Act’ but it is L.T.A. I do not consider above to have prepared or embarrassed the accused in his defence.

Sufficient number of adjournments have been given to the defence. Also no such objections were raised prior to the written submissions being made.

I consider the defects to be minor and in no way it has affected the defence as seen by the manner of the conduct of his case and the elaborate submissions made in writing.

The accused no case submissions rejected as it was after the close of prosecution case.

As for the facts it is not disputed that the accused drove on 15th day of March 2003 vehicle CW480 on Ratu Dovi Road whilst there was present in his blood a concentration of 222.2 micrograms of alcohol in 100 ml. of blood which is in excess of the prescribed limit.

I accept the prosecution evidence beyond reasonable doubt to prove the charge.
The accused is found guilty as charged.

Ajmal G. Khan
RESIDENT MAGISTRATE